Records Relating to the Resignation or Termination of a Government Employee Are Subject to Disclosure

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Dear Mr. Stecklow and Ms. McNeal-Dawkins:

This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Office of Public Safety Administration (OPSA) of the City of Chicago (City) violated FOIA by denying Ms. Rachel Heimann Mercader's FOIA request for records pertaining to the separation of a police officer from the Chicago Police Department (CPD).

BACKGROUND

On April 7, 2025, Ms. Mercader submitted a FOIA request to OPSA via e-mail seeking copies of "any records relating to Officer Pierre Tyler's separation from the Chicago Police department. Whether that be resignation, termination or other means."! Ms. Mercader's e-mail signature identified her as a journalist at Northwestern University's Medill School.” On April 14, 2025, OPSA extended its time to respond by five business’ days pursuant to sections 3(e)(v) and 3(e)(vii) of FOIA.* On April 28, 2025, OPSA denied the request in its entirety pursuant to section 7(1)(b) of FOIA.” OPSA asserted that the withheld records consist of "private Information" as defined in section 2(c-5) of FOIA,° but quoted that definition imprecisely. OPSA stated:

"Private information" is defined in Section 2(c-5) as:

"unique identifiers, including social security numbers, file numbers, CHIPPs numbers, license plate numbers, employee identification numbers, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plate, except as otherwise provided by law or when compiled without possibility of attribution to any person" (5 ILCS 140/2(C-5).'”) (Emphasis in original.)

However, section 2(c-5) instead defines "private information[,]" in relevant part as:

unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person.

Additionally, OPSA argued that "[t]he sharing or disclosure of the records could invade Officer Tyler's personal privacy. Therefore, OPSA FOIA will not disclose members[’] letters of resignation or letters of termination."® By using the language "personal privacy,” OPSA appears to have invoked the exemption in section 7(1)(c) of FOIA? which contains that term. On May 6, 2025, Mr. Sam Stecklow, on behalf of the Invisible Institute, submitted a Request for Review that identified Ms. Mercader as "an extern with Invisible Institute through the Medill School of Journalism at Northwestern University[.]"!° In contesting the withholding of the separation records, Mr. Stecklow argued:

[T]his is an improper denial — both procedurally and in content. Section 7(1)(b) exempts "private information," defined in Section 2(c-5) as containing data points from Social Security Numbers to license plates to biometric identifiers to home phone numbers. Nowhere in the exemption or definition of "private information" is there a reference to exclusively professional material, such as a alia for a public employee's separation from a public job.

Mr. Stecklow also disputed the applicability of section 7(1)(c), arguing that the exception in the exemption for information that bears on the public duties of public employees is fatal to OPSA's argument: “All we seek is information that bears on the public duties of a public employee."”

On May 8, 2025, an Assistant Attorney General in the Public Access Bureau e- mailed Mr. Stecklow to seek verification of whether Ms. Mercader submitted the FOIA request on behalf of the Invisible Institute.!’ On that same date, Mr. Stecklow forwarded! to this office Ms. Mercader's e-mail confirming that she submitted her FOIA request "[o]n behalf of the Invisible Institute[.]"!> On May 9, 2025, the Public Access Bureau forwarded a copy of the Request for Review to OPSA together with a letter asking for unredacted copies of the contested records for this office's confidential review. The letter also requested a detailed explanation of the factual and legal bases for the assertion that the records are exempt from disclosure in their entireties. '© | In a letter dated May 29, 2025, OPSA provided the requested materials.'’ On the same day, this office forwarded a copy of OPSA's response letter to Mr. Stecklow and Ms. Mercader.'® On May 29, 2025, Mr. Stecklow submitted a reply.!?

On June 27, 2025, the Public Access Bureau extended the time within which to issue a binding opinion to August 11, 2025, pursuant to section 9.5(f) of FOIA.”°

ANALYSIS

In section 1 of FOIA (5 ILCS 140/1 (West 2024)), "it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act." Section 1.2 of FOIA (5 ILCS 140/1.2 (West 2024)) provides that "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying[,]" and that "[a}]ny public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." "In line with the presumption set forth in section 1.2 of FOIA, exemptions ‘are to be read narrowly." Mancini Law Group, P.C. v. Schaumburg Police Department, 2021 IL 126675, 4 16 (quoting Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997)). "Thus, when a public body receives a proper request for information, it must comply with that request unless one of FOIA's narrow statutory exemptions applies." Jn re Appointment of Special Prosecutor, 2019 IL 122949, { 25.

Section 7(1)(b) of FOIA Section 7(1)(b) of FOIA exempts from disclosure "[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order." As quoted above, FOIA defines "private information" as "unique identifiers," such as social security numbers. Unlike the various pieces of discrete information that may be redacted under section 7(1)(b), medical records are the only records expressly defined as a form of "private information" which may be withheld in their entireties.

In its written answer to this office concerning records of Officer Tyler's separation from CPD, OPSA stated that it "continues to determine this information highly confidential information and exempts this document from disclosure pursuant to" section 7(1)(b).?7! OPSA then misquoted the definition of "private information" in the same manner as its response to Ms. Mercader's request.” Conflating the section 7(1)(b) and section 7(1)(c) exemptions, OPSA also asserted: "[T]he disclosure of Officer Tyler's records would be an unwarranted invasion of personal privacy. Withholding this information protects the personal privacy of Officer Tyler.

Thus, the information Ms, Heimann requested is exempt from disclosure pursuant to section 7(1)(b) of FOIA and is therefore denied."

To the extent that OPSA contends that the responsive records are exempt from disclosure in their entireties under section 7(1)(b), OPSA disregards the requirement to construe FOIA exemptions narrowly. Pursuant to the plain language of the definition of "private information" in section 2(c-5), section 7(1)(b) of FOIA generally allows public bodies to redact discrete "unique identifiers" within public records—not withhold entire records simply because they contain such discrete pieces of "private information." Section 7(1) of FOIA” unambiguously provides:

When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying. (Emphasis added.)

Because OPSA did not provide any legal or factual support for its assertion that the withheld records consist entirely of private information, OPSA failed to demonstrate by clear and convincing evidence that the records are exempt from disclosure in their entireties under section 7(1)(b) of FOIA.

Despite OPSA's overbroad denial, certain discrete portions of the records constitute private information within the scope of section 7(1)(b). Specifically, the records contain handwritten signatures and an employee identification number. As quoted above, section 2(c-5) of FOIA defines "private information" to include an "employee identification number." Additionally, in a previous binding opinion, the Attorney General concluded that handwritten signatures are exempt from disclosure as "unique identifiers" under section 7(1)(b). Ill. Att'y Gen. Pub. Acc. Op. No. 14-015, issued November 25, 2014, at 11. Because signatures and employee identification numbers fall within the scope of "private information" under FOIA, that specific information may be redacted from the responsive records.

Section 7(1)(c) of FOIA Although OPSA did not expressly cite to section 7(1)(c) of FOIA in its answer to this office, that provision is relevant to this matter because, as noted above, OPSA asserted that "the disclosure of Officer Tyler's records would be an unwarranted invasion of personal privacy. Withholding this information protects the personal privacy of Officer Tyler."* Section 7(1)(c) of FOIA exempts from disclosure "[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Section 7(1)(c) defines "unwarranted invasion of personal privacy" as "the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information." However, the exemption also expressly provides that "[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy." (Emphasis added.) The Illinois Appellate Court has construed this exception as follows:

To "bear on" a subject means to "be relevant to" that subject (New Oxford American Dictionary 141 (2005)) or to have "reference to"

or "relate to" that subject (1 Oxford English Dictionary 733 (1970)). "Information" can be true or false. Whether information "bears on" (or is relevant to, relates to, or has reference to) the public duties of public employees depends on the subject matter of the information, not its ultimate accuracy. Gekas v. Williamson, 393 Ill. App. 3d 573, 585 (2009).

The court explained that because complaints against a police officer and related materials, whether "true or false, founded or unfounded, bear on his duties as a police officer, the disclosure of these materials would not invade his personal privacy, and, thus, we do not reach the question of whether their disclosure would be a 'clearly unwarranted invasion of [his] personal privacy.’ [Citation.]" Gekas, 393 Ill. App. 3d at 586. This office's review of the withheld separation records confirmed that they plainly fall within the public duties exception to the section 7(1)(c) exemption. Public records that concern a public employee's separation from employment with a public body directly bear on the public duties of that employee, if not also the employee's supervisor(s) and/or other public employees. The responsive records do not contain any information that is unrelated to the public duties of public employees, such as information about a public employee's purely private affairs. Because the definition of "unwarranted invasion of personal privacy" in section 7(1)(c) expressly excludes information that bears on public duties of public employees, it is unnecessary for this office to balance the officer's right to privacy against the public interest in disclosure of the separation records.”° Accordingly, this office concludes that the withheld separation records are not exempt from disclosure pursuant to section 7(1)(c) of FOIA.

FINDINGS AND CONCLUSIONS

After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that:

1) On April 7, 2025, Ms. Rachel Heimann Mercader submitted a FOIA request to the Office of Public Safety Administration of the City of Chicago seeking copies of records related to the separation of a police officer from the Chicago Police Department.

2) On April 28, 2025, OPSA denied the request in its entirety pursuant to section 7(1)(b) of FOTIA; the response also appeared to assert that the information was exempt from disclosure pursuant to section 7(1)(c) of FOIA by reciting some of the statutory language of that exemption.

3) On May 6, 2025, Mr. Sam Stecklow, on behalf of the Invisible Institute, submitted a Request for Review contesting the withholding of the termination or resignation records. Mr. Stecklow's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)).

4) On May 8, 2025, this office received confirmation that Ms. Mercader submitted her FOIA request on behalf of the Invisible Institute.

5) On May 9, 2025, the Public Access Bureau forwarded a copy of the Request for Review to OPSA together with a letter asking for unredacted copies of the disputed separation records for this office's confidential review. The letter also requested a detailed explanation of the factual and legal bases for the applicability of the specific exemptions under which OPSA withheld the records.

6) On May 29, 2025, OPSA's FOIA officer furnished the requested materials. The written response asserted that records were exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(c) of FOIA.

7) On May 29, 2025, this office forwarded a copy of OPSA's response letter to Mr. Stecklow. On the same day, Mr. Stecklow submitted a written reply.

8) On June 27, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by fewer than 30 business days, to August 11, 2025. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter.

9) Section 7(1)(b) exempts from disclosure "private information," which the Act defines to include "unique identifiers" such as home addresses, personal telephone numbers, and social security numbers. A public employee's separation records are not defined as a form of "private information." Because the separation records do not solely consist of "unique identifiers," they are not exempt from disclosure in their entireties pursuant to section 7(1)(b) of FOIA. Only the discrete private information in the records—an employee identification number and signatures—may be redacted under the exemption.

10) Section 7(1)(c) exempts from disclosure "[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Section 7(1)(c) expressly provides that "[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy."

11) Disclosure of records concerning the separation of the public employee would not constitute a clearly unwarranted invasion of personal privacy because the information directly bears on the public employee's public duties, if not also the public duties of other public employees.

12) Accordingly, OPSA has not sustained its burden of proving that the separation records are exempt from disclosure pursuant to sections 7(1)(b) or 7(1)(c) of FOIA.

Therefore, it is the opinion of the Attorney General that the Office of Public Safety Administration of the City of Chicago has violated FOIA by improperly withholding from the Invisible Institute records responsive to Ms. Rachel Heimann Mercader's FOIA request. Accordingly, OPSA is hereby directed to take immediate and appropriate action to comply with this opinion by disclosing copies of the separation records in a supplemental response to Ms. Mercader's request, subject only to the redaction of the employee identification number and signatures under section 7(1)(b).

This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois, Ms. Rachel Heimann Mercader, Mr. Sam Stecklow, and the Invisible Institute as defendants. See 5 ILCS 140/11.5 (West 2024).

Sincerely,

KWAME RAOUL ATTORNEY GENERAL

R. Douglas Rees Chief Deputy Attorney General certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25- 010) upon:

Mr. Sam Stecklow Reporter Invisible Institute 6100 South Blackstone Avenue Chicago, Illinois 60637 [email protected] Ms. Naomi McNeal-Dawkins FOIA Officer Freedom of Information Office City of Chicago Office of Public Safety Administration 3510 South Michigan Avenue, 3rd Floor Chicago, Illinois 60653 [email protected] by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on August 11, 2025.

fli ELAN — Edie Steinberg Senior Assistant Attorney General Edie Steinberg Senior Assistant Attorney General Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Ilinois 60603 (312) 814-5201